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Kim v The Queen [2018] NSWCCA 68

appeal against sentence — importing tobacco products with intent to defraud the revenue offence contrary to s 233BABAD(1) of Customs Act 1901 (Cth) — dealing with money more than $1,000,000 which could be instrument of crime offence contrary to s 400.3(1) of Commonwealth Criminal Code — other offence taken into account pursuant to s 16BA — original sentence imposed 6 years’ and 6 months imprisonment, sentencing judge imposed 3 year and 4 month non-parole period for second offence but no non-parole period with respect to first offence — offender eligible for release on parole after serving 4 years and 10 months of sentence — offender and relevant co-offender both charged with defrauding the revenue offence, co-offender also charged with a lesser offence of dealing with proceeds of crime being more than $100,000 — offender and co-offender both sentenced to 2 years’ and 3 months imprisonment with respect to defrauding the revenue offence — parity — in accumulating sentences for co-offender sentencing judge provided that second sentence would start 6 months after commencement of first sentence — with respect to offender provided second sentence would commence 18 months after commencement of first sentence — no difference in culpability of each with respect to defrauding the revenue offence — significant difference in culpability with respect to proceeds of crime offences properly reflected in differential sentences imposed for second offences — no explanation in judgment for different levels of accumulation — proper inference is that it was a mistake by sentencing judge — non-parole period — s 19AB(1) — as sentence in aggregate exceeded 3 years sentencing judge in error by purportedly declining to fix a recognisance release order for first offence and failing to fix single non-parole period commencing on first day of sentence — non-parole period increased by 6 months but commencement date shifted to date of first sentence — expiry date thus 12 months earlier than fixed by sentencing judge — leave to appeal granted — appeal allowed — offender resentenced to 5 years’ and 6 months imprisonment with 3 year and 10 month non-parole period
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